by Justice William W. Bedsworth

Among my earliest memories of lawyering is conducting voir dire¹ in my first case. Actually, it’s not so much a memory as an impression, a sense of impending, ineluctable, nauseous, sweaty, vertiginous, helpless doom. I started out afraid I was going to die and ended up afraid I wasn’t going to die.

I would have welcomed death. I’d been a card-carrying, fully-certified, turned-loose-on-an-unsuspecting-public member of the California bar for twenty-two hours, and would, at that moment, have given my spleen² to be back in the Dorothy Chandler Pavilion, getting my nihil obstat from the California Supreme Court with the option still open of forgoing a career as a lawyer, driving to my father’s casket shop, and picking up a hammer.

But here I was, standing before the Honorable Celia Baker, and her court clerk and bailiff—all of whom knew vastly more about lawsuits than I did. The room was full to overflowing with the bus drivers, beekeepers, and bandleaders who made up the jury venire and were not much behind the bailiff and clerk in being better suited to their task than I was.

They may not have had law degrees, and they may never have been in a courtroom before, but they were generally confident of their ability to fill their role as jurors.

I, on the other hand, was confident only of my impending failure. I was, after all, essentially unarmed. I had in my hands a photocopied list of questions to ask (two pages), a seating chart on which I had scribbled their names, and two yellow pages of notes—things about the case I needed to inquire about.

You can do the math. That’s five sheets of paper. Those of you who’ve met me know I have only two hands. And they aren’t particularly deft. I was demonstrating that lack of dexterity repeatedly, fumbling and floundering as I tried to get through my questions.

Which was how I regarded my task. I had to get through my questions. I felt I had to ask all of them. In order.

Forget evaluating prospective jurors and making decisions about exercising challenges. I had to get through my questions. I couldn’t sit down until I had asked them all.

In order.

Obviously, I’d had no training for this task. I’d learned a lot about the music of the spheres in Berkeley, but we’d spent precious little time on the arcana of the courtroom. I was a mechanic who had learned of cars only through books: They had taught me a lot about the physics and engineering of the internal combustion engine, but I could no more take apart a carburetor than I could flap my wings and fly to Detroit.

And the District Attorney’s Office did not believe in training in those days. It was sink or swim. You were sworn in on Monday and picking a jury on Tuesday, and if you weren’t “man enough”³ to handle it, you could sink to the bottom and they’d replace you with a swimmer.

So I was splashing around like a wounded seal. Oh, I had my list of “mandatory” questions, but the list did not include answers. I had only the vaguest idea what was a favorable answer and what was an unfavorable one.

So no matter what response my question drew, I would nod sagely and act interested. And I would try—at all costs—to be friendly and confident.⁴

“Three felony convictions; well now, you have been busy haven’t you, Sir?”

“Eight to ten bottles of beer a night? Uhhh . . . do you have any favorite brands?”

“Wow, even while working that hard to break into Roller Derby, you’ve found time to write epic poems about your drug experiences. That . . . uh . . . that shows . . . um . . . a commendable amount of dedication.”

Each answer—inane, outrageous, pedestrian, disqualifying, or totally meaningless—whatever it was, would be followed by my attempt to appear cool (and friendly and confident) as I jotted down an illegible, unintelligible note in the little box on my seating chart.

Then, when I realized I needed more room in those boxes to jot down the names of the veniremen⁵ substituted in during the peremptory challenge process, my notes would be written in the blank space beside the seating chart. With arrows to the name to which the note pertained.

Or the name next to it. Or above it. My arrows were not always exact. “Dang, was it Claiborne or Borkowski who owned forty-seven handguns?”

Periodically, the five sheets of paper I was juggling would defeat me. Sometimes one would drop to the floor. Sometimes three. I’d flail at them like a bear fishing for salmon, then bend over and pick them up off the floor.

One fell to the other side of the lectern. While the moment could not have lasted more than two seconds, I can still remember the internal debate that went on while I tried to figure out whether I was going to walk in front of the jury and bend over to get to it or all the way around the counsel table and into the well.

I remember that decision—and the bucket of perspiration it generated—more clearly than I remember any of my other voir dire thought processes. But I do remember the struggle to distinguish good news from bad.

“She has two brothers who are cops, but she admits to drinking herself and thinks our ‘drunk driving’ laws are too harsh. Is she a keeper or a challenge?”

“This one thinks we need to get the drunks off the road, but doesn’t think there’s anything wrong with drinking and driving ‘per se.’ Huh?”

“This one called the judge, ‘Your Eminence,’ defense counsel ‘Honorable Counsel,’ and me, ‘Mr. Bumstead.’ What in hell do I make of that?”

It was miserable. It was the worst cocktail party you ever went to, followed by a quiz.

And it was the beginning of every trial. It was exactly what Jean Paul Sartre describes in his classic play No Exit. And he was describing hell.

So it comes as no surprise, I suppose, that I became an appellate lawyer. Many of you, like Dick Beacom, are amazed that I am still in the law and not out somewhere selling aluminum siding.

But let me point out for you that I am not alone. I have a friend named Dave Carter. Dave and I were rookies together in the DA’s Office. He became the office’s top homicide litigator. Now he’s a federal district judge.

He’s also a war hero. An honest-to-goodness, bonafide war hero. He’s got medals and scars—although you won’t learn about them from him.

He was in combat. He was wounded in combat. It took them months in Letterman Hospital to put him back together. I picked up the paper this morning and there was a picture of him in his mask, striding through a homeless encampment trying to make sure those folks got a fair shake—COVID-19 be damned.

The guy is fearless.

And yet . . .

And yet . . .

Back in the days when we were both prosecutors, a group of us were talking about the rigors of trial work over lunch. I was surprised to hear him agree with another DA who had talked about having to deal with fear in trying lawsuits. Fear of embarrassment . . . fear of failure . . . fear of being afraid. Flop sweat fear.⁶

“Dave,” I marveled, “You? You have that problem?”

I can still hear his voice. “Billy,” he said, “if someone had come up to me at the moment the venire began to file into the courtroom . . . if someone had come up to the counsel table when those sixty or eighty or a hundred strangers were choosing their seats . . . and said to me, ‘Dave, why don’t you go back to the office; I’ll try this case,’ I never would have tried a lawsuit in my life.”

Dave Carter. Word for word, so help me.

That day I learned it wasn’t just me. If Dave Carter gets wobbly in the courtroom, everybody does. I’ve since concluded that if you aren’t nervous in a courtroom, if you don’t worry about your ability to do the job as well as you should . . . as well as you want to . . . you aren’t paying attention.

So deal with the sweaty palms, ignore the perspiration that’s starting to course down your back, pick your notes up off the floor, and remind yourself, “I can tread water just as long as they can make it rain.”

You can do this.

BEDS NOTES

1. Let’s get the MCLE out of the way early. This phrase is correctly pronounced however the judge pronounces it. “Vwah deer,” “vore dyer, “la jolla” . . . however the judge says it is the way you’re going to say it this week.
2. I would have waived anesthesia.
3. There were two women in the office at that time: Alicemarie Stotler and Oretta Sears. Both became judges. Both were better lawyers when I first met them than I am today. They had to be to get the job.
4. My boss Dick Beacom (later to become the Honorable Richard Beacom), gave me that advice. It was the only advice he offered. “Just be friendly and confident; you’ll be fine.” In fact, given access to a bookie, Dick would have bet the farm on my failure. He was the first in a long line of lawyers unable to figure out how I have gotten as far as I have.
5. How is it we still use that term?
6. Fear of dropping your voir dire notes on the floor.

William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.